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Common(wealth) Knowledge #31: New year, new court

Updated: Apr 7, 2023

What we could see in the High Court in 2023.

As 2022 comes to a close, it is important to reflect on the year that has been and the year that will come. And that’s what we’ve been doing with Common(wealth) Knowledge. So far we’ve reflected on some important cases from 2022 and explored possible constitutional issues in 2023. To wrap up this three-part miniseries, let's now take a look at the High Court of Australia in the new year.

2023 will be the first full year of a majority-female High Court bench, with Chief Justice Susan Kiefel and Justices Michelle Gordon and Jacqueline Gleeson being joined by Justice Jayne Jagot, following the latter’s elevation from the Federal Court to the High Court when Keane J retired. In addition, it will be the first year since 2019 where there will be stability on the bench, with no sitting judges expected to retire until 2024.

Usually the Chief Justice is expected to be the dominant figure on the bench, setting the tone and attitude of the court. Looking back on the history of the court, it is possible to separate the court into distinct periods based on who the Chief Justice is, for that reason. There are exceptions to the rule, however. For example, Justice Isaac Isaacs dominated court between 1912 and 1919, following the death of founding member Justice Richard O’ Connor, which left Chief Justice Samuel Griffith and Justice Edmund Barton, the other two founders, in the minority on the five-judge bench, which expanded in 1913 to seven judges. The three founders took a different approach to the other judges, so it was difficult for Griffith CJ to assert his dominance.

It is possible that we could see something similar in the next two years, before Kiefel CJ retires in 2024. So far, the court under her leadership has been known for strong joint and majority judgments. This is because Kiefel CJ wrote joint judgments with Bell and Keane JJ the vast majority of the time. This meant that all it took for a majority decision was one more judge to agree with them, either by joining that judgment or writing a separate concurring judgment. In cases split 4:3 or 5:2 this meant that the joint judgment of Kiefel CJ, Bell and Keane JJ would have the most force, because it consisted of most of the judges who were in the majority.

However, Bell and Keane JJ have retired, and there has not been a trend of joint judgments being made by a group of three other judges this year, only joint judgments by a pair of judges. This means that, despite the Kiefel court so far being known for decisions where it is easy to make out the reasoning of the majority because a number of judges write the same opinion, the court will instead see judges writing alone or in pairs. One side effect of this is that, in narrow cases, it will be difficult to work out what the reasoning of the majority was, as it will be split between multiple judges using different reasoning. We could instead see something closer to the divide seen in Common(wealth) Knowledge #25.

Another issue going into 2023 is that only two judges, Kiefel CJ and Edelman J, have spent any time on State Supreme Courts, and in the case of Kiefel CJ that was only for less than 1.5 years. With the exception of Gageler and Edelman JJ, all judges spent most, if not all, of their pre-High Court time on the Federal Court of Australia. Gageler J had not served as a judge before being appointed to the High Court, though he had represented the Commonwealth government as its Solicitor-General. The problem here is that the court’s perspective will largely be a Commonwealth one, even though the High Court is meant to hear appeals from State and Territory Supreme Courts and hear cases involving both levels of government.

However, it isn’t all bad news. As mentioned in Common(wealth) Knowledge #30, the Indigenous Voice to Parliament is probably the biggest constitutional issue that Australia will face in 2023. The High Court is in an excellent position to deal with this. Gageler J, in particular, is known for his expertise on public law matters, including constitutional law, and his decisions are treated in a high regard. Jagot J, the court’s newest appointment, was one of the primary judges hearing native title decisions on the Federal Court, partially as a result of her previous tenure on the NSW Environment and Land Court for two years. The skills of both judges will be of great importance to the court in any cases it might hear relating to the Voice.

And thus ends Common(wealth) Knowledge for the year of 2022. 2023 is set to be a busy year for the High Court and the government because of the Voice, so chances are that we will be revisiting that issue many times in the new year. But it won’t be the only topic, so get ready for many exciting new issues in 2023, plus some old favourites, like the implied freedom of political communication, showing up again.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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